Dave Stafford for www.theindianalawyer.com

Convicted fraudster and ex-attorney William Conour’s appeal of his conviction and 10-year sentence on a federal wire fraud charge argues the court failed to investigate his defense counsel’s withdrawal. His appeal also claims that the court wrongly imposed “suspicionless” searches and other conditions of supervised release following his imprisonment.

Conour, 67, also challenges standard supervised release requirements that he not consume excessive amount of alcohol, among other things, after his prison term is up. The Bureau of Prisons projects his release will be in March 2022. He is seeking oral argument before the 7th Circuit Court of Appeals.

Conour is being represented by two federal public defenders from the Central District of Illinois.

Once a leading personal injury and wrongful-death attorney, Conour was sentenced in October 2013 after he pleaded guilty in July of that year to defrauding former clients. The government says Conour stole nearly $6.8 million in settlement proceeds from 36 former clients or beneficiaries.

He resigned from the bar in June 2012 rather than face a disciplinary proceeding filed in May 2012.

“The district court abused its discretion by failing to conduct any inquiry into the reasons behind defense counsel’s motion to withdraw during the restitution proceedings after Mr. Conour had been sentenced,” despite the office’s statement that conflicts existed between Conour and his public federal defender, Conour’s brief says.

“The district court’s failure to conduct a sufficient inquiry and to permit defense counsel to withdraw severely prejudiced Mr. Conour. This court should reverse and remand for further proceedings.”

Various public defenders had appeared for Conour at the time the District Court for the Southern District of Indiana became aware the agency was holding $2,512 from a Conour trust fund while he also was subject to the court’s restitution order.

“The district court abused its discretion by failing to address trial counsel’s motion to withdraw until after making substantive rulings regarding restitution and garnishment,” the brief says.

At some point during the restitution phase, Conour was filing pro se motions in the court of Chief Judge Richard Young while he also was represented by a public defender, which led Young to strike his pro se pleadings in multiple instances.

“The court did not ask whether defense counsel could continue to adequately represent Mr. Conour, despite the conflicts of opinion on restitution and loss and the conflict of opinion on the garnishment action” regarding money the office held in Conour’s name, the brief says. Conour had sought that money for his commissary fund at the Morgantown, West Virginia, Federal Correctional Institution, but Young ordered the public defender’s office to turn the money over to the court.

The appeal brief says Conour and his defenders consistently disagreed with restitution calculations and the court’s garnishment of funds the office held in his name.

Separately, Conour’s appeal brief argued the District Court abused its discretion because he was never granted an opportunity to object to a special condition of supervised release that made him subject to “suspicionless” searches.

“(T)he special condition at issue here authorizes not only the search, but the seizure of any contraband found,” the appeal brief says. “The basis for this broad authority to seize is not contained in the record, which is problematic.”

Prior to his conviction, though, Conour had been jailed and had his bond revoked for dissipating assets without first seeking court approval, which had been a term of his pretrial release. Limited restitution has been made, and Conour still owes victims more than $6 million.

Conour’s brief also argues that a condition requiring him to “truthfully answer all inquiries (by) the probation officer and follow the instructions of the probation officer” would violate his rights under the Fifth Amendment.

The brief also attacks special terms of release it contends are generally overbroad in federal sentencing. For instance, Conour’s terms of probation include that he support dependents, regularly work and not frequent places where illegal substances are sold, among other things.

Conour’s youngest children will be legal adults when he’s released, the brief says, and he will have no dependents at that time. The brief also raises the hypothetical instance of Conour getting into trouble for frequenting a store where a clerk sells heroin.

“The concerns … are not meant to be absurd or picayune,” the brief says. “They are meant to illustrate the fact that Mr. Conour, like other defendants, has been subject to conditions that should at least be more particularly crafted because they pose a penal risk if violated.”

The government’s reply brief is due Jan. 2, 2015.

Dave Stafford for www.theindianalawyer.com

The bank that promises customers 24-hour grace overdraft protection received more than 20 days grace in an Indiana Court of Appeals ruling Tuesday.

A divided appeals panel reversed default judgment a trial court entered against Huntington National Bank in a mortgage foreclosure case. The majority held the bank’s failure to timely respond to a lawsuit from another creditor was excusable neglect because the person who normally handled court notices was on maternity leave.

Huntington held a first mortgage on property in Porter County owned by Susanne and Terry Wood. That loan was made in 2005 in an original principal amount of $310,500. Car-X Associates Corp. also had an interest in the property and earlier this year sued to foreclose a judgment lien in the amount of $200,359.90 plus fees and costs.

The trial court granted default judgment against Huntington in favor of Car-X after Huntington didn’t file a responsive pleading within the timeframe established under Trial Rule 6(E). The court later denied Huntington’s motion to set aside the default judgment.

“Finding that Huntington has established that it was entitled to relief from the default judgment by demonstrating excusable neglect and a meritorious defense, we conclude the trial court abused its discretion in denying Huntington’s Trial Rule 60(B)(1) motion to set aside the default judgment,” Judge Elaine Brown wrote for the majority joined by Judge Cale Bradford.

Dissenting Judge Michael Barnes wrote that he understood the majority’s reasoning but disagreed with it.

“One employee’s maternity leave is not such a circumstance and should not be used as an excuse for delaying judicial proceedings beyond the clear deadlines set by our Trial Rules, especially where a large and sophisticated party such as Huntington is concerned,” Barnes wrote. “I would defer to the trial court’s exercise of its discretion in this matter, and I vote to affirm its denial of Huntington’s motion for relief from judgment.”

The case is The Huntington National Bank v. Car-X Associates Corp., 64A04-1405-MF-227.